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MEMBER DIARY

Parsing Ginsburg

Whither goes religious liberty?

The Hobby Lobby Supreme Court ruling is of great interest in highlighting the moral value systems underlying opposing views of the Justices. Five justices affirm a closely held company’s right to behave in a manor consistent with their controlling owners’ religious belief that life begins at conception and should be protected. Four justices affirm the government’s right to compel companies to pay for products for their employees whose purpose is to terminate the viability of an egg (viewed in the owners’ religious context as terminating a life) through use of material financial penalty (almost $475,000,000 per year in Hobby Lobby’s case).

According to Justice Ginsburg; “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” The most liberal reading of the majority opinion does not even come close to supporting the breadth presumed by Ms. Ginsburg. On what basis does a Supreme Court Justice indulge in such hyperbole other than to give entirely inappropriate political sway to her dissent?

Justice Ginsburg notes somewhat snidely; “Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab.” But, the purpose of the entire ACA is to impose regulation that requires everyone to pick up the tab for everyone else. The very purpose is to socialize health care, a purpose which in other context within her dissent Ms. Ginsburg strongly concurs.

Justice Ginsberg notes with sweeping generalization; “The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.” For perspective, nonexempt employers are generally required under HSS regulations to provide coverage for the 20 contraceptive methods approved by the Food and Drug Administration, including the 4 that may have the effect of preventing an egg from developing by preventing fertilization or inhibiting attachment of a fertilized egg to the uterus. Hobby Lobby only sought and won the right not to pay for the 4 abortifacients included in the 20 approved contraceptive methods. The 4 abortifacients include “morning after pills” that cost between $35 to $60 USD (single dose per event), implants such as Implanton which cost between $450 to $550 USD and last up to three years, and various IUD’s which cost between $500 to $1,000 USD and are effective for 5 to 10 years. Ms. Ginsburg is blowing smoke. No employees are being denied anything. If an employer does not pay for these 4 products under the majority ruling employees are free to acquire abortifacients at a reasonable cost and the government is free to provide direct financial support to such employees for such products through other means.

Justice Ginsburg further notes; “The ACA’s contraceptive coverage requirement applies generally, it is “otherwise valid,” it trains on women’s well being, not on the exercise of religion, and any effect it has on such exercise is incidental.” But, the entire case is being heard because the owners of Hobby Lobby with sincerely held religious beliefs about the sanctity of life DO NOT BELIEVE THE COMPULSION IS INCIDENTAL. “Incidental” means of minor or casual or subordinate in significance or nature or occurring as a chance concomitant or consequence. That is, in Ms. Ginsburg’s mind, temporal regulation promulgated and enforced by Federal staff, that is, the religion of government, takes precedence over sincere religious practice accepted over thousands of years.

The writing is clear. Justice Ginsburg, and those justices concurring with her, believe it appropriate to compel owners of closely held businesses to comply with Federal regulations requiring behavior clearly in conflict with essential religious beliefs concerning the sanctity of human life. The majority, however, find that such circumstances allow for tolerance and freedom of religious expression. As Justice Kennedy notes; “In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.”

The ruling of the majority is correct. However, it should be concerning to all Americans that four of nine Supreme Court Justices believe the compulsion of government regulations is more important than religious liberty in matters involving human life. What further extent of legal rationalization awaits us if one more justice chooses to prefer government regulation over religious liberty? What Constitutional protections await destruction in the name of government tyranny endorsed by a Supreme Court of the United States of America dominated by the likes of Justice Ginsburg?